Citation Nr: 0714080
Decision Date: 05/11/07 Archive Date: 05/25/07
DOCKET NO. 02-11 948 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for a right inguinal
hernia.
2. Entitlement to service connection for a gastrointestinal
disorder, to include residuals of a ruptured appendix.
3. Entitlement to a temporary total rating, under the
provisions of 38 C.F.R. § 4.29, based on hospitalization in
August and September 2003.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and a former Veterans Service Officer
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The veteran served on active duty from January 1948 to
January 1968.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from an August 2000 rating decision of the
Cleveland, Ohio, Regional Office (RO) of the Department of
Veterans Affairs (VA).
In order to satisfy certain due process concerns, as well as
to arrange for the veteran to be scheduled for a hearing to
be conducted by a member of the Board (now a Veterans Law
Judge), the case was remanded to the RO in December 2002.
In February 2007, the veteran, sitting at the RO, testified
via video conference with the undersigned Acting Veterans Law
Judge sitting at the Board's central office in Washington,
D.C.
In March 2007, the undersigned granted the veteran's motion
to advance his case on the Board's docket, pursuant to
38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c)
(2006).
The Board observes that the matter of entitlement to service
connection for residuals of a left foot puncture wound was
denied by the RO as part of the August 2000 rating decision.
The veteran perfected a timely appeal as to this issue.
Subsequently, in July 2004, the RO granted service connection
for degenerative arthritis of the left foot, residuals of
puncture wound that represents a full grant of the benefits
sought as to this matter. As such, this matter is therefore
no longer before the Board for appellate consideration.
If a claim has been placed in appellate status by the filing
of a notice of disagreement (NOD), the Board must remand the
claim to the RO for preparation of a statement of the case
(SOC) as to that claim. See Manlicon v. West, 12 Vet. App.
238 (1999). As part of the Board's December 2002 remand, it
was noted that in September 2002 the RO denied entitlement to
service connection for hypertension, arthritis, thyroid
disorder, and sexual dysfunction. The Board noted that the
veteran had expressed disagreement with the denial of these
claims in October 2002. As a result, the Board in December
2002 requested the RO to furnish the veteran and his
representative a SOC and provide them an opportunity to
submit a substantive appeal within the requisite 60-day
period. The SOC was mailed to the veteran in April 2004.
However, while acknowledging the argument presented by a
former representative of the veteran in the course of the
February 2007 video conference hearing (see pages 15 and 16
of the hearing transcript (transcript)), the veteran did not
respond by submitting a timely substantive appeal as to these
matters. Therefore, these matters are not now before the
Board for appellate consideration.
The Board also observes that, in April 2007, correspondence
from the veteran was received by the Board. In pertinent
part, this correspondence includes an October 2006 letter
from the veteran's accredited representative requesting, in
response to an April 2004 letter to the veteran from VA, an
"in-person" hearing before a Veterans Law Judge. As noted
above, the veteran was afforded a video conference hearing
conducted by the undersigned Acting Veterans Law Judge in
February 2007 and expressly accepted the video conference
hearing in-lieu of the in-person hearing. While it is not
exactly clear as to whether the veteran is, in fact, seeking
an additional hearing (following the one he was afforded in
February 2007), in any event, as "good cause" has not been
demonstrated to justify the allowance of such an additional
hearing, another hearing will not be scheduled. See
38 C.F.R. §§ 20.703 and 20.1304 (2006).
Further, the veteran's recently submitted additional evidence
to the Board also includes a letter dated in September 2006
from his representative. As part of this letter, entitlement
to service connection was sought for hemorrhoids, a left foot
puncture wound disorder with arthritis, sexual dysfunction,
hypertension, thyroid condition, right inguinal hernia, and
for a gastrointestinal condition with ruptured appendix. The
RO granted service connection for hemorrhoids in February
2001 and for a left foot puncture wound with arthritis in
July 2004. The Board interprets the September 2006 letter to
be a claim for an increased rating as to both of these
disorders. As such, they are referred to the RO for all
appropriate additional development. As for the claims raised
for service connection for sexual dysfunction, hypertension,
and thyroid condition, as noted above, these matters were all
addressed as part of an April 2004 SOC. The veteran did not
perfect appeals to these matters. The Board therefore
interprets the September 2006 letter as a claim to reopen
these matters. They are therefore also referred to the RO
for all appropriate additional development. Finally,
regarding the cited claims for right inguinal hernia and for
a gastrointestinal condition with ruptured appendix, these
two claims are addressed herein as part of this decision.
FINDINGS OF FACT
1. The objective and competent medical evidence of record
preponderates against a finding that the veteran currently
has a diagnosed right inguinal hernia disability related to
his active military service.
2. The objective and competent medical evidence of record
preponderates against a finding that the veteran currently
has a diagnosed gastrointestinal disability related to his
active military service.
3. The objective medical evidence of record demonstrates
that the veteran was hospitalized for less than 21 days in
August and September 2003.
CONCLUSIONS OF LAW
1. A right inguinal hernia disability was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2006).
2. A gastrointestinal disability was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2006).
3. As the veteran does not have basic eligibility for a
temporary total rating under the provisions of 38 C.F.R. §
4.29, the claim is without legal merit. 38 C.F.R. § 4.29
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., evidence
of veteran status; existence of a current disability;
evidence of a nexus between service and the disability; the
degree of disability; and the effective date of any
disability benefits. The veteran must also be notified to
submit all evidence in his possession, what specific evidence
he is to provide, and what evidence VA will attempt to
obtain. VA thirdly has a duty to assist claimants in
obtaining evidence needed to substantiate a claim. This
includes obtaining all relevant evidence adequately
identified in the record, and in some cases, affording VA
examinations. 38 U.S.C.A. § 5103A.
In this case, there is no issue as to providing an
appropriate application form or completeness of the
application. Written notice, in the form of a letter dated
in April 2004, fulfills the provisions of 38 U.S.C.A.
§ 5103(a). A March 2006 letter provided notice of the type
of evidence necessary to establish a disability rating or
effective date for the disabilities on appeal. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board acknowledges that the notice required by 38
U.S.C.A. § 5103(a) must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. While VA failed to
follow that sequence, any defect with respect to the timing
of the VCAA notice requirement was harmless error. Of
course, an error is not harmless when it "reasonably
affect(s) the outcome of the case." ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Here, however, the
above-mentioned notice instructed the appellant what he
needed to show to entitlement to service connection as well
as entitlement to a temporary total rating, as well as his
duty to submit all pertinent evidence in his possession. The
content of the notice fully complied with the requirements of
38 U.S.C.A. § 5103(a). The appellant was provided with every
opportunity to submit evidence and argument in support of his
claims and to respond to the VA notice, including providing
testimony during his February 2007 hearing before the
undersigned.
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development. Hence, VA has
fulfilled its duties under the VCAA. To the extent that VA
has failed to fulfill any duty to notify and assist the
veteran, that error is harmless since there is no evidence
the error reasonably affects the fairness of the
adjudication. Thus any error in the timing was harmless, the
appellant was not prejudiced, and the Board may proceed to
decide this appeal. Simply put, there is no evidence any VA
error in notifying the appellant that reasonably affects the
fairness of this adjudication. Id.
II. Factual Background
Review of the service medical records includes the report of
a January 1951 discharge and reenlistment examination which
shows essentially normal findings. A December 1953
reenlistment examination report shows a right inguinal scar,
which was well healed, with no sequela. A history of a right
inguinal herniorrhaphy in 1947 [preservice], with no
complications or sequela was noted. A February 1958 health
record notes that the veteran was rechecked to see if his
hernia was recurring. Examination showed no left-sided
hernia. An August 1959 treatment record shows that the
veteran was seen to check on his hernia (side unspecified)
operation from five years earlier. No recurrence of hernia
was observed. A December 1959 treatment note from Travis Air
Force Base shows that the veteran was to be scheduled for the
surgery clinic for his hernia. A January 1960 general
surgery clinic note shows that the veteran had a left
inguinal hernia, and that he was placed on a scheduling
list. An April 1960 treatment note shows that the hernia had
healed well.
The report of the veteran's August 1967 retirement
examination notes findings reflective of, in pertinent part,
right and left inguinal hernia scars and an appendectomy
scar. All were noted to be "WHNS" (well healed, no
sequela). It was reported that the veteran underwent a right
inguinal herniorrhaphy during his childhood, with no
complications and no sequela. An appendectomy was also
reported to have occurred during the veteran's childhood,
with no complications or sequela. He was also noted to have
undergone a left inguinal herniorrhaphy in 1960 [during his
period of active service], with no complications or sequela.
The service medical records are devoid of medical findings
relating to gastrointestinal-based problems.
Post service, a September 1990 VA medical record report shows
diagnoses of right inguinal herniorrhaphy and right inguinal
hernia. The veteran was admitted for a surgical workup, but
declined undergoing a surgical procedure for hemorrhoids.
A March 2000 letter from Wright-Patterson Air Force Base
shows that the veteran had a right inguinal hernia which
would require surgical repair.
The report of a June 2000 VA fee-based examination, conducted
at The Ohio State University Medical Center, notes that the
veteran presented with a massive right inguinal hernia. A
large irreducible right inguinal hernia was diagnosed.
An October 2000 VA consultation sheet shows that the veteran
reported a history of a right inguinal hernia repair which
was originally performed in 1948. The veteran added that he
had had a recurrence about 15 years ago, and that his
condition had become progressively worse over that time. A
provisional diagnosis of very large hernia was provided.
A January 2001 VA surgical consult report shows that the
veteran provided a history of a prior right inguinal hernia
surgery in 1947 and appendectomy at the age of 11. A large
nonreducible right hernia was diagnosed.
A February 2001 VA operation report shows that the veteran
underwent a right inguinal hernia repair.
A March 2001 VA medical note shows that the veteran's right
inguinal hernia surgical correction was healing well.
An outpatient treatment record from the VA Medical Center
(VAMC) in Chillicothe, Ohio, shows that the veteran was
admitted on August 25, 2003. Diagnoses of multiple fractures
including hemopneumothorax and increased blood pressure was
diagnosed. While the veteran provided a history of a right
inguinal hernia repair, examination revealed that no hernias
were seen nor felt. A VA orthopedic clinic consultation note
reports that the veteran fell from a roof and fractured his
ribs on the left side, developed a hemothorax, and also
fractured his right glenoid. A VA discharge summary shows
that the veteran, after being admitted on August 25, 2003,
for various injuries, including multiple rib fractures, and
fracture of the right glenoid, was discharged on September 3,
2003.
At the time of his 2003 accident and VA hospitalization,
service connection was in effect for hemorrhoids and a
residual left inguinal herniorrhaphy scar, both evaluated as
noncompenably disabling.
During his February 2007 hearing before the undersigned, the
veteran testified that he was initially denied entry into the
U.S. Army Air Corps due to his having a left-sided hernia.
He said that he was accepted after the disorder was
repaired. See page three of transcript. He added that, in
1952, during his military service, he had a right-side hernia
repaired. See page four of transcript. The veteran also
testified that he had an appendectomy when he was 11 years
old (see page seven of transcript), and that his claimed
gastrointestinal problems essentially were caused by his
history of hernia surgeries. See page 10 of transcript. The
veteran also testified that in 2003 he fell from a shed roof
that resulted in his cracking several ribs and injuring his
left shoulder. See pages 11 and 12 of transcript.
Concerning his claimed gastrointestinal disorder, the veteran
said that while his current problems have nothing to do with
his having had a ruptured appendix, he needs to take
medication for his stomach. See page 20 of transcript. He
added that his stomach was "doing fairly well now." See
page 21 of transcript. He conceded that no doctor had ever
told him that he had stomach problems as a result of his
right hernia disorder. See page 25 of transcript.
III. Laws and Regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R.
§ 3.303(d).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997); see also, Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992).
In deciding whether the veteran has a current disability due
to military service, it is the responsibility of the Board to
weigh the evidence and decide where to give credit and where
to withhold the same and, in so doing, accept certain medical
opinions over others. Schoolman v. West, 12 Vet. App. 307,
310-11 (1999). The Board is also mindful that it cannot make
its own independent medical determinations and that there
must be plausible reasons for favoring one medical opinion
over another. Evans v. West, 12 Vet. App. 22, 30 (1999).
To establish service connection, there must be evidence of an
etiologic relationship between a current disability and
events in service or an injury or disease incurred or
aggravated there. Rabideau v. Derwinski, 2 Vet. App. at 143.
The Board notes that a veteran is presumed in sound condition
except for defects noted when examined and accepted for
service. Clear and unmistakable evidence that the disability
existed prior to service and was not aggravated by service
will rebut the presumption of soundness. 38 U.S.C.A. § 1111
(West 2002); VAOPGCPREC 3-2003. A pre-existing disease will
be considered to have been aggravated by active service where
there is an increase in disability during service, unless
there is a specific finding that the increase in disability
is due to the natural progression of the disease. 38
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006).
In VAOGCPREC 3-2003, the VA's General Counsel determined that
the presumption of soundness is rebutted only where clear and
unmistakable evidence shows that the condition existed prior
to service and that it was not aggravated by service. The
General Counsel concluded that 38 U.S.C.A. § 1111 requires VA
to bear the burden of showing the absence of aggravation in
order to rebut the presumption of sound condition. See also
Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant
v. Principi, 17 Vet. App. 116, 123-30 (2003).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required." Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
Under the applicable criteria, a total disability rating (100
percent) will be assigned without regard to other provisions
of the rating schedule when it is established that a service-
connected disability has required VA hospital treatment for a
period in excess of 21 days. 38 C.F.R. § 4.29.
IV. Legal Analysis
A. Service Connection
1. Right Inguinal Hernia
The veteran contends that service connection is warranted for
a right inguinal hernia that he says was incurred in service.
Service medical records do not support his claim but,
rather, show that he underwent a left (rather than right)
hernia surgical procedure in service. The service medical
records also report that he underwent right hernia surgery
prior to his service enlistment. See e.g., Wagner v.
Principi, supra. While complaints of right side hernia
symptoms are noted in 1990, and while surgical intervention
was advised in 2000, followed by his undergoing right
inguinal hernia surgery in 2001, there was no showing that he
had a diagnosed right hernia disorder at the time he was
admitted into a VA medical facility in August 2003.
Furthermore, the veteran has submitted no evidence to show
that he currently has a diagnosed right hernia disorder. In
short, no medical opinion or other medical evidence showing
that the veteran currently has a right inguinal hernia has
been presented. Rabideau, supra, at 143.
2. Gastrointestinal Disorder to include Residuals of a
Ruptured Appendix
The veteran has also contended that service connection should
be granted for a gastrointestinal disorder, or, has he
described his problem during his February 2007 video
conference, for "stomach" problems relating to his hernia
procedures. The medical record, however, is devoid of
findings associated with a gastrointestinally-based
disorder. In fact, when examined in August 2003 on admission
into a VA medical facility, a gastrointestinal disorder was
not reported. Additionally, the veteran has submitted no
evidence to show that he currently has a gastrointestinal
disorder. In short, no medical opinion or other medical
evidence showing that the veteran currently has a
gastrointestinal disorder has been presented. Rabideau,
supra, at 143.
3. Both Disorders
In addition, the veteran does not meet the burden of
presenting evidence as to medical cause and effect, or a
diagnosis, merely by presenting his own statements, because
as a layperson he is not competent to offer medical opinions.
The Court has made this clear in numerous cases. See, e.g.,
Espiritu, supra, at 495; see also Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge"), aff'd
sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998),
cert. denied, 119 S. Ct. 404 (1998). There is no evidence
showing, and the veteran does not assert, that he has had
sufficient medical training to provide competent medical
evidence as to the etiology of his claimed disabilities.
The Board finds a lack of competent medical evidence to
warrant a favorable decision. The Board is not permitted to
engage in speculation as to medical causation issues, but
"must provide a medical basis other than its own
unsubstantiated conclusions to support its ultimate
decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996).
Here, the appellant has failed to submit competent medical
evidence to provide a nexus between any in-service injury or
disease and the conditions that caused and contributed to his
currently claimed right inguinal hernia and gastrointestinal
disorders. The preponderance of the evidence is therefore
against the appellant's claims for service connection.
The Board has considered the doctrine of reasonable doubt.
Under that doctrine, when there is an approximate balance
between evidence for and against a claim, the evidence is in
equipoise, there is said to be a reasonable doubt, and the
benefit of such doubt is given to the claimant. 38 U.S.C.A.
§ 5107(b); see Schoolman, supra; 38 C.F.R. § 3.102. However,
when the evidence for and against a claim is not in
equipoise, then there is a preponderance of evidence either
for or against the claim, there is no reasonable doubt, and
the doctrine is inapplicable. Hayes v. Brown, 5 Vet. App.
60, 69-70 (1993). Based upon the evidence of record, service
connection for a right inguinal hernia and for a
gastrointestinal disorder is denied.
B. Temporary Total Rating
The veteran also contends that he is entitled to a temporary
total rating under the provisions of 38 C.F.R. § 4.29 for VA
hospital treatment that he received in August and September
2003. However, the Board finds that this claim must be
denied because the veteran does not have basic eligibility
for that benefit.
As noted above, 38 C.F.R. § 4.29 requires VA hospital
treatment for a period in excess of 21 days. In this case,
the record plainly shows that the veteran was hospitalized at
a VA medical facility for treatment of non-service-connected
disorders, resulting from his suffering from an accidental
fall. He was admitted into the VAMC in Chillicothe, Ohio, on
August 25, 2003 and he was discharged on September 3, 2003.
Clearly, he was not an inpatient at this medical facility for
a period of 21 days.
As the veteran clearly does not have the basic eligibility
for a total temporary rating under the provisions of 38
C.F.R. § 4.29, there is no legal basis for the Board to award
the benefit he seeks. Thus, the claim must be denied as
lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
In reaching these decisions the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claims, the doctrine is
not for application. Gilbert, supra.
ORDER
Service connection for a right inguinal hernia is denied.
Service connection for a gastrointestinal disorder, to
include residuals of a ruptured appendix, is denied.
A temporary total rating under the provisions of 38 C.F.R.
§ 4.29 based on hospitalization in August and September 2003
is denied.
____________________________________________
D. J. DRUCKER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs